KUMAR (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to cancel Mr Pavan Kumar's Subclass 457 (Business Long Stay) visa. The cancellation was based on the ground that Mr Kumar had not complied with condition 8107(3)(a)(ii) of his visa, which required him to work only in a position within the business of his approved sponsor or an associated entity, and his occupation as a cook was not exempt from this condition. The Tribunal's jurisdiction was limited to the review of the decision concerning Mr Kumar, as his wife's visa was automatically cancelled as a consequence of his visa cancellation.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider all material submitted by the applicant and apply relevant legal principles regarding the assessment of evidence and the exercise of discretionary powers in visa cancellation matters.

The Tribunal found that the applicant had not complied with condition 8107(3)(a)(ii) of his visa, as he did not work for the sponsor, Delights of Punjab, Punjabi Restaurant Pty Ltd, or an associated entity. The applicant's explanation that the business was sold and the owner avoided him was not accepted by the Tribunal. The Tribunal noted the applicant's inconsistent accounts regarding his previous study experience and the fact that he had not commenced sponsored employment since the grant of his visa, despite subsequently working for other businesses without an approved nomination. Applying the principle that decision-makers are to attribute such weight to relevant information as they see fit, the Tribunal concluded that the ground for cancellation was made out. In exercising its discretion, the Tribunal considered the applicant's circumstances, including his history of temporary visas and his failure to secure sponsored employment, and determined that the visa should be cancelled.

The Tribunal affirmed the decision of the Minister's delegate to cancel Mr Kumar's Subclass 457 visa.